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I got charged with speeding in a community safety zone. The community safety zone signs are unenforceable because they are in English only (see R. v. Myers: http://www.yourbestdefence.com/illegal_ ... _case.html) and I'm in a designated bilingual area. My question is, do I still get charged for speeding or will the whole thing be quashed?

Your notice of trial will have the charge listed as speeding (and only speeding!) The court has to determine whether you were speeding. They then calculate your fine. If you were speeding in a community safety zone, then the fine is double.

If the cs zone doesn't exist (because the sign wasn't bilingual) then your speeding fine is just the regular fine.

You can try arguing that the ticket has a fatal flaw: the fine is not appropriate to the charge.

Tcombat: My ticket states exactly that I allegedly did commit the offence of: "Speeding 89 km/h in a posted 60 km/h community safety zone". I certainly cannot plead guilty to this charge, because the community safety zone is not posted in French in a bilingual area thus it is not posted according to the government's own regulations thus it is not posted. Period.

I don't see why I should be charged with "speeding 89 km/h in a posted 60 km/h zone" as it's a different charge and the ticket does not reflect that. Had I been driving without seatbelts as well, but got no ticket for it, they would not be able to pin it on me in court. Am I wrong here?

You have a point though tcombat, the notice of trial only says "speeding", so I may be in a tougher position here. Maybe I'll pay less, but the charge might stick.

Bear, agreed that there is a lot of case law that is BS. The biggest one is R. v. Daviault. In Toronto, the cops and prosecutors have known about the bilingual requirement for four years but they still continue to lay charges. And unless you know about Myers, you will be found guilty despite being completely innocent.

Traffic court is a game and everyone gets an invitation to play on a yellow ticket.

P_Joe, I would pursue the fatal flaw on the ticket argument. You can even highlight it in your disclosure request under a section called "Explanation and Clarification of the Charge":

Please indicate how the ÃƒÂ¢Ã‚â‚¬Ã‚Å“Total PayableÃƒÂ¢Ã‚â‚¬Ã‚Â on my Notice of Offence is calculated, including a breakdown for the set fine, costs and victim fine surcharge. Also please indicate what relation the fine has to the alleged speed I was going, that is under what authority (Act, section, regulation, etc) is the fine calculated and how is this calculation made so that I may understand the charge and prepare my defence accordingly.

You also need to attack the foundation of the speeding charge: the officer knew what he was doing and the speed measuring device was working properly.

proper_joe wrote:Hwybear: Well, the judgment was upheld upon appeal, so it stands..

Never said it did not stand....just does not make sense

I cannot disagree. It doesn't make sense, but neither does my ticket, in my opinion. Here is a quick summary.

I was leaving a shopping centre driveway turning right from a stop sign onto a very busy 3 lane road. I had to move all the way to the left on that road into a dedicated left turn lane at the very first lights about 350 m from the driveway (4 lane change). The road was clear, but the lights about 50 m back turned green just as I started from the stop sign. The only way to safely move all the way to the left was to accelerate and maneuver in front of all the cars that just got the green. The thing is, they all accelerate to almost 80 (I know, because I live less than 1 km away and drive there daily). The cop was sitting in the next driveway on the right side of the road in a driveway about 20m before the lights where I was going to turn left. The cop is there often, but this time, I didn't look, because I wanted to make sure that I'm ahead of the other cars, otherwise it would have been more dangerous to weave in between them. He must have seen me pulling out of the shopping center, and if I were speeding, it was for a max of 5 seconds, as I had to break in the dedicated lane and wait for the opposing traffic to pass before I made the turn. The cop had to wait for a few vehicles to pass before he came up behind me. I still turned left, and stopped in the side street so it was safe. I live about 500 m from there.

I think the cop was unreasonable and should have let me go. Thus, I'm fighting it all the way including a request for full disclosure and a request for all kinds of radar and logs info from the cops under freedom of information. Even though I still have the receipt from the store dated 1 minute before the ticket, I can't fight the charge based on for example necessity or what not, because speeding is an absolute liability offence. Sucks. If I don't win, at least the whole thing will cost much much more for the other side. I'm not about to give up on this and take the standard reduced charge of 15 over and no points. That's what I told the prosecutor at first appearance. I don't really care about the points, as I have none right now, and a conviction is a conviction in the eyes of insurance, no matter about points.

ticketcombat wrote:P_Joe, I would pursue the fatal flaw on the ticket argument. You can even highlight it in your disclosure request under a section called "Explanation and Clarification of the Charge":

Please indicate how the ÃƒÂ¢Ã‚â‚¬Ã‚Å“Total PayableÃƒÂ¢Ã‚â‚¬Ã‚Â on my Notice of Offence is calculated, including a breakdown for the set fine, costs and victim fine surcharge. Also please indicate what relation the fine has to the alleged speed I was going, that is under what authority (Act, section, regulation, etc) is the fine calculated and how is this calculation made so that I may understand the charge and prepare my defence accordingly.

You also need to attack the foundation of the speeding charge: the officer knew what he was doing and the speed measuring device was working properly.

Good luck. TC.

Are you quoting some source here, or composing an example? It's a great idea, I will include similar wording. Thanks

Also, can you elaborate on what you mean by the last comment about attacking the foundation of the charge? I would think that you mean that I should check whether the officer is qualified, what training he had, quiz him about the calibration procedure during cross ex, and how he uses the radar etc. BTW, I grabbed the Manraj A. Shakoor book "The law on speeding and speed detection devices" (ISBN: 9780433354625) from the library so I'm trying to prepare something. I still have till Dec.
Thanks for all help.

proper_joe wrote:Are you quoting some source here, or composing an example?

I'm composing an example.

proper_joe wrote:can you elaborate on what you mean by the last comment about attacking the foundation of the charge?

When you walk into court you have a presumption of innocence which should mean there is reasonable doubt about the evidence presented against you. In order to remove that doubt for a speeding charge, the prosecutor has to show that:

the officer knew what he was doing

the speed measuring device was working properly

Once this is established, then you are guilty of speeding (an absolute liability offence) and any explanation, excuse or denial is pointless. You have got to attack these two points which are the foundation of the prosecution's case. That means maintaining plausible doubt.

Example (radar), you must raise the question of whether the radar gun was operating properly. In order to prove that it was, the prosecution must demonstrate that:

the internal check (pressing the test button and getting 88 was done)

tuning forks with correct serial number, high and low speed, were used to test the gun

the forks were tested within a reasonable amount of time (say 4 months) to ensure they were vibrating properly

The bad news is that this is not an onerous burden upon the prosecution. They should be doing it anyway. But the good news is that they think that if you know about it you will question the officer about it which is a huge mistake:
You: Was the gun calibrated properly?
Cop: Yes.
You: Oops!

You attack the foundation through the lack of disclosure. The officer cannot testify he tested the tuning forks because this is outsourced to another company (heresay). The prosecution cannot submit any certification in court unless they have disclosed it to you in advance. Same with the bylaw regulating the speed limit or the days/hours when the community safety zone was in operation.

Lack of disclosure leads to an adjournment. An adjournment leads to an 11b application for a stay. Or make an 11b application for a stay based on inadequate disclosure in the first place.

One word of warning about disclosure: be careful for what you ask for, you might get it. And one of the goals of disclosure is to NOT get the information.

ticketcombat wrote:But the good news is that they think that if you know about it you will question the officer about it which is a huge mistake:
You: Was the gun calibrated properly?
Cop: Yes.
You: Oops!

Sorry, do you mean it's a mistake for the officer to say that the gun was calibrated because they did not reveal the paperwork from the facility that calibrated the tuning fork through disclosure (regardless of whether they actually bring it to court)? What if the Police send it to me with the freedom of information request?

ticketcombat wrote:Lack of disclosure leads to an adjournment. An adjournment leads to an 11b application for a stay. Or make an 11b application for a stay based on inadequate disclosure in the first place.

I'm in an area that deals with cases in a timely fashion. Plus, I asked to have the trial later because I wanted to prepare plus I didn't want it in the middle of my vacation. I guess it doesn't hurt to try 11b application in case they want to adjourn for any reason, but not sure if it would work.

ticketcombat wrote:
One word of warning about disclosure: be careful for what you ask for, you might get it. And one of the goals of disclosure is to NOT get the information.

I'm asking for disclosure (carefully, not mentioning bylaws etc) and I'm sending a request to the Police under freedom of information to release radar model + serial no, manuals, training materials, calibration logs, records of any kind, procedures for traffic stops, bla bla. I'm wondering, though, whether they will flag it for being super demanding, and notify everyone and their dog to be super meticulous with respect to disclosure and prepare accordingly because some cocky bastard needs to have his ass whipped in court.

Moderator

ticketcombat wrote:You attack the foundation through the lack of disclosure. The officer cannot testify he tested the tuning forks because this is outsourced to another company (heresay).

Tuning forks have the speed stamped on them that represent what they are supposed to show when struck and held in front of an active radar antenna. If one would strike the fork, hold it in front and it shows 49km on radar and it is stamped 50km on the fork. I would then conitune by testing using the other fork, and see if that reading matches the fork. If the readings matches, there is a tuning fork problem, if it does not match there is a radar problem. Either way, simple to figure out and send for repair at a proper facility.
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Radar measures wave lengths, tuning forks emit a wave length...how do you think they obtain what speed should be on a fork? reminds me of a song way back...."Things that make you go hmm"

FYI, OPP radar units do not use tuning forks. There is only the test button. Manufacturer eliminated the fork tests many years ago as it is redundant.

Speaking of this area....testing....should have saw the look on a paralegals face one day.....my notes, first test at "X" time, 2nd test..."fail"....he looks at me (before court) you kow about this, yes absolutely...well I've never seen an officer put that in the notes, well, it was the first time in 12yr I had a radar failure. So unit went for servicing.

Above is merely a suggestion/thought and in no way constitutes legal advice or views of my employer. www.OHTA.ca

proper_joe wrote:Sorry, do you mean it's a mistake for the officer to say that the gun was calibrated because they did not reveal the paperwork from the facility that calibrated the tuning fork through disclosure (regardless of whether they actually bring it to court)?

No I mean it's a mistake for you to get into it with the cop because you can inadvertently establish the case for the prosecution. The best example I can give you of all of this in action is R. v. Martin, 2008. I strongly recommend you read this case, print and paste it to your forehead and waive it about inappropriately at family gatherings until you know it inside and out. Another example: R. v. Tkachuk, 2006
And some examples when it doesn't work:

Or make an 11b application for a stay based on inadequate disclosure in the first place.

My bad. I meant 11d - fair trial. And I should have stated it correctly which is "make a 24(1) application based on 11d". It will be about inadequate disclosure, not about reasonable amount of time.

As for the FOI, I don't think it's worthwhile. What are you going to do with this information when you get it? Besides, it's going to cost you a lot of money for the photocopies. They have to prove they followed procedures, which means they have to provide evidence in court, not you. And if they don't disclose that evidence to you in advance, it should not be admitted.

hwybear wrote:FYI, OPP radar units do not use tuning forks. There is only the test button. Manufacturer eliminated the fork tests many years ago as it is redundant.

I used radar as an example, I don't know what was used in Proper_joe's case so I am reluctant to get into the intricacies of radar unnecessarily. But I will say this. Appellate courts examine external verification that a device is working properly when there is a question about that device. A device cannot test itself. Another example, a radar gun must be used to verify a lidar gun is working properly (R. v. Vancrey [2000] O.J. No. 3033).